Thursday, August 28, 2008

Divorced Parents' Rights in the Religious Upbringing of Their Children

Parents have a constitutionally protected fundamental right in the care, custody and control of their children. This constitutional guarantee includes the parents' right and freedom to expose their children to their own particular religious beliefs. However, when interfaith spouses divorce, disagreements over the religious upbringing of their children can ensue. In such circumstances, state family courts may be called upon to balance the competing interest of the parents and the children in an effort to resolve the dispute.

Types of Post-Divorce Disputes Regarding Religious Upbringing of Children

Upon divorce, the parent who is awarded the physical custody of their child or children is referred to as the "custodial parent." The other parent is the "noncustodial parent." In some circumstances, parents may be awarded joint custody. In general, disputes over the religious upbringing of children of divorce may be divided into three categories including:

<![if !supportLists]>·<![endif]>Custodial parents who wish to restrain a noncustodial parent's imposition of their own religious values on their children;

<![if !supportLists]>·<![endif]>Noncustodial parents who object to the lack of religious values of the custodial parent; and

<![if !supportLists]>·<![endif]>Regardless of the type of dispute, courts typically must consider what would be in the best interest of the children.

Rights of Custodial and Noncustodial Parents

In the majority of states, the custodial parent is granted the right of directing the everyday management of their children's upbringing, including their religious indoctrination. Despite this right however, most courts hold that the custodian is not thereby entitled to restrain the noncustodian from exposing their children to their own religious beliefs. Thus, the custodial parent's rights in the religious upbringing of their children are not exclusive.

In contrast, a minority of states have held that the right to determine the religious upbringing of children exclusively lies with the custodial parent. In these states, custodial parents are generally entitled to restrict the noncustodial parent from introducing the child to another religious perspective.

Exception to the Majority Rule: Harm to the Child

Although most states bestow both parents with the absolute right to expose their children to their own religious beliefs after a divorce, there is one exception. Where conflicting religious experiences would cause clear and affirmative harm to the child, the noncustodial parent's rights may be restricted. What constitutes sufficient "harm" to justify the restriction of a noncustodial parent's rights is determined on a case by case basis. Generally, while mere confusion or stress to the child is typically inadequate, stress that is so severe as to manifest into physical symptoms might suffice.

For example, one court found sufficient harm where a boy suffered severe stress from attending and keeping up with both Catholic masses and Jewish services, including bar mitzvah lessons. The boy's stress had caused him to develop encopresis, a bowel control problem, which was alleviated after he was removed from the bar mitzvah lessons, as ordered by the court.

Objection That the Religious Beliefs of the Custodial Parent Are Too Extreme

A general agreement exists among the states that a noncustodial parent seeking to modify custody of their children, due to religious differences, must demonstrate that the custodial parent's beliefs would cause them harm. Where the noncustodial parent can sufficiently show that the custodial parent's religious beliefs are "too extreme," a court may be willing to modify custody. For example, a custodial mother who follows a sect touting that any non-believers are "God's enemies" and who teaches her child to lie to God's enemies could be considered too extreme.

A request to modify custody based on extreme religious beliefs of the custodial parent typically requires the court to balance the interest of the parties. On one hand, the court must consider the custodial parent's right to free exercise of religion and rearing of their children. On the other hand, the court must also determine what is in the best interest of the children. However, custodial parents' rights in the religious upbringing of their children are very heavily protected and courts rarely find the requisite showing of harm to the child.

Objection That the Custodial Parent Lacks Religious Values In cases where the noncustodial parent is seeking to modify custody based on the fact that the custodial parent is "not religious enough," courts do not typically grant the modification. For example, where a custodial Orthodox Jewish mother fails to observe certain tenets and practices of the faith, the noncustodial father will likely not be granted a modification of custody solely on that basis. In addition, a court would typically not allow modification where the religious noncustodian objects that the custodial parent lacks faith of any kind. These types of cases are also subject to the "harm to the child" exception, but sufficient harm is similarly difficult to demonstrate.

Bloomington Illinois Divorce Attorney -- Jon D. McLaughlin

I grew up in Provo, Utah, but moved to Oklahoma in order to finish my bachelor’s degree in philosophy and ancient greek at Oklahoma State University. I then attended law school at the University of Illinois. While in law school, I was an Associate Editor of a journal published by the university. Also during this time, I worked for law firms in Tulsa, Oklahoma, and Indianapolis, Indiana, and for the Honorable Joe McDade (a Federal Judge, sitting in Peoria).

While still in law school, the Illinois Supreme Court allowed me to practice law and represent clients under Rule 711. This allowed me to gain valuable experience, early on, that has served me well in my subsequent practice.

After law school, I moved to Bloomington, Illinois, and have been practicing law here since that time. While I have handled business transactions and litigation in the past, some involving more than $10,000,000, I now limit my practice to family law matters. I handle divorce, custody, child support, visitation, and other matters that require the court’s attention. I have had much success in getting my clients promising results because of my firm and aggressive approach.

I am a Guardian ad Litem, which means that the courts appoint me to investigate child custody, visitation, and other matters. These appointments have helped me become a better advocate for children and to toughen my position in fighting for my clients.

I am a Mediator, approved by the Eleventh Judicial Circuit of Illinois, to conduct court-ordered Custody Mediation for parties who are in the midst of custody and/or visitation disputes in the Bloomington-Normal area. In addition to being certified to mediate custody and visitation issues, I am also certified to mediate financial issues in divorce and family law cases in McLean County. These issues include Child Support, Maintenance (Alimony), the assets and debts of the parties, and other matters relating to the financial side of family law cases. I am also a member of the Mediation Council of Illinois. Due to my experience in the area, I am able to advise my clients as to how they can achieve the best results in mediation. In the Eleventh Circuit, mediation is mandatory in visitation and custody disputes. Therefore, it is important to be well-advised when participating in mediation and negotiating a possible resolution to your case.

The majority of my cases are tried in McLean County; however, I also practice in other surrounding counties.